Our neighbours have a tree right next to our boundary fence. Perhaps naively, I applied for planning permission for a kitchen extension, not realising it might be an issue for our neighbour's tree because of its roots. The tree is perhaps a metre further down the garden from the end of the proposed extension. The neighbours objected to the planning app, but as the tree has no protection order it was approved, though they made it very clear that liability would fall to us if cutting the roots caused it to die.

Neither our builder or the tree officer would commit to anything other than "the damage may or may not kill the tree" and the builder has advised that there is nothing we can do to protect the tree while building the extension. The builder is keen to press on with the build, adding an extra disclaimer to his contract that he is not liable for any damage.

What would you do? Do I need legal advice? Or do I do as the builder is suggesting and just get on with it? Or do I scrap the whole idea for the sake of the tree?

What we would do is build the extension. We would not dream of expecting our neighbours not to build an extension in case it damaged any tree in our garden. Your neighbours seem rather selfish to me. Either they or the previous owners of their property chose to plant the tree in its position close to the boundary. Have you looked on the RHS web site to actually find out how far the roots may spread and how your building may affect it? That information may make you feel better or may worry you more. In any case in answer to What would you do, I say build. I am no expert in the matter, just applying my idea of fairness.

You may need to take steps to prevent the roots of the tree causing damage to your building.

Hi Mac, it's a silver birch. The tree officer suggested a root protection area of a circle with a 3.4m radius. At a guess it's probably 3.5m tall, though it looks like they've taken a lot off the top recently.

This is one area of garden law that appears inconsistent in its application. On the one hand the encroachment of roots is a trespass, and you're able to remedy that by cutting them back. If a neighbour's root system damages your property they must compensate you, whether or not their tree came first.

On the other hand if you kill their tree you may have to compensate them.

So assuming the tree officer has applied 12x stem diameter to come to the root protection area, that suggests it measures 28cm in diameter. If it measures 3.5m in height and you think it's been reduced, that suggests that it will likely decide to turn itself to soil within a short space of time. By exercising your common law rights and severing roots on your side, it is unlikely that subsequent death of the tree could be attributable to you rather than what I'm imagining as a grim birch reduction.

I'd follow Mac's advice if I were you. The works might not kill the tree, but if they do, it'll cost you only a few hundred pounds, and if they plant the new one where the existing one is they run the risk of causing damage to your extension and having to pay you much more compensation. Perhaps when you cut the roots you can instal a steel barrier.

I would make sure to take steps to protect your building. When we moved to our house there was a beautiful silver birch in the back garden. We were so pleased and enjoyed that tree for years, until the roots started to surface and lift 3 x 2 flags in a patio and garden path. Sadly we had the tree cut down in order to make the garden safe.

Don't let this put you off building, just make sure to take all necessary steps to protect your building. Your garden is for you to enjoy or build on, not for your neighbours to dictate what you may or may not do.

You own the land up to the boundary and any roots encroaching on your land can be removed, you don't have to tolerate them and can cut them right back to e boundary. In doing this you should try not to kill the tree but even if you do...the neighbour would have to sue you and prove that your cutting back actually killed the tree and that in cutting back you knew the tree would die...and this would all be balanced by your right to use all your land right up to the boundary which would also be a factor the court would take into consideration.

He has a right to have a tree there but he doesn't have a right to use your land to support it. So there is a balance between rights and who wins will depend upon the individual circumstances but the chances are it would never get to court and a settlement would be agreed which may be a couple of hundred quid.

Imagine if no development could ever occur on land where there are trees, not on the land itself, but owned by neighbours.

Personally I would try to reason with him by pointing out that I have the right to cut the roots right back to the boundary and if they encroach again and cause damage to my extension, then I would sue not for a tree but for expensive repairs to a building, so let's both be reasonable and come to a solution. If he won't be reasonable the answer is simple....I have the right to cut the roots right back to the boundary and will be doing exactly that and there isn't anything you can do about it.

Would it be sensible to get a tree surgeon/consultant in to give us further advice or would you not bother?

Currently we're debating proposing to the neighbours that we go halves on cutting it down and getting a new tree in a better location in their garden, as a compromise. Hopefully they aren't too attached to that particular tree. Would that be reasonable? We want to maintain a good relationship with them as it will make the build much easier (and make their view of the wall nicer!) if the builder can get access to their garden to lay the bricks.